For those of us who work in the mental health system, and for those
who live with a mental illness, our work and our lives intersect with the
legal system around a complex and delicate decision. In certain
situations, people with a mental illness can be made to go into a
psychiatric hospital or institution against their will. This process is
called an involuntary commitment and every state has a law for it,
although those laws are not well known. In the state of Maine, where I
live and work, this law means that if a person has a mental illness, and
if they are in imminent danger of harming themselves or someone else, they
can be put into a psychiatric hospital against their will.

The
police can initiate this process. They have the authority to take
individuals into police custody if they have reason to believe the person
has a mental illness and is at risk of substantial harm. Once the person
is in custody, the police can then take them to the hospital for
evaluation by a psychiatrist. If the psychiatrist believes this person to
have a mental illness and to be in danger of imminent harm, the
psychiatrist and another person fill out a certification of the need for
involuntary commitment, which is also signed by a Justice of the Peace.
This constitutes the initial involuntary commitment.

The slang
term for the certification process that is used by both workers and
patients in the mental health community is "blue paper." The form
authorizing the involuntary commitment is blue, and the phrase is used
liberally as a verb: "Gee, I hope they don't blue paper me." Slang adds a
touch of drollness to a controversial act that represents a difficult
decision for doctors, as well as an often very upsetting process for the
person being "blue-papered," and sometimes their family. (Although
sometimes the family gets upset if the person is not blue-papered.)
This initial blue paper holds the ill individual in the hospital for five
working days. At the end of these five days, patients may sign in to the
hospital on a voluntary basis or they may be discharged. Alternatively, if
the psychiatrist feels that the patient continues to be an imminent risk
of harm to themselves or others, and if the patient continues to refuse to
stay in the hospital on a voluntary basis, there is another, more formal
process of commitment which involves a court hearing before a judge.

Many people outside of the mental health system are not
necessarily aware of the law surrounding involuntary commitment. Yet most
of the time those of us who work inside the mental health system take it
for granted. I would like to step back from taking this law for granted
and take a critical look at it.

From a civil rights perspective,
involuntary commitment creates a class of people who, at the discretion of
a police officer, can be taken briefly into police custody and then placed
in a sort of preventive detention. Patricia Deegan is an ex-patient and
activist who refers to long stays in psychiatric institutions as
incarceration, a word that is chosen for its political charge but I think
also speaks to the lived experience of the patient. Involuntary
incarceration clearly imposes a different standard of civil "liberty" onto
the mentally ill than that which is theoretically guaranteed to the rest
of us. If you are not classified as mentally ill, can you be confined
somewhere for something people believe you are going to do, but which you
have not yet done? Is there any evidence that persons with mental illness
are actually more dangerous to others than random members of the general
public? These questions are starting places for looking beyond common
assumptions about role that involuntary incarceration plays in the
interplay between civil rights and civil protections.

For mental
health professionals, the law can seem exceptionally frustrating when we
are working with patients who are tormented and debilitated by their
illness and unable or unwilling to receive treatment in the community. A
patient who hears voices constantly, who exists in a state of fear about
people she believes are trying to kill her, who does not take any
medicines because she believes they are poisoned, and who is too
distracted by her illness to cook meals or take showers, could probably
not be committed to a hospital involuntarily. For those of us who entered
a helping profession in order to help people who are suffering, this fact
often feels like a tremendous failure of the system. Dr. Paul Chodoff, who
has written several articles on the topic, points out that the focus of
the involuntary commitment law on "imminent harm" as the main criterion
for commitment, leads psychiatrists to feel frustrated that their work is
aimed more at serving the police state in keeping dangerous people off the
streets than in carrying out the aims of psychiatry. He argues that the
involuntary commitment law should be broadened to allow commitment of
those with a mental illness who need hospitalization due to the severe
state of their illness, whether they are dangerous or not.

The
existing law about involuntary commitment is the result of a long
dialectic between an attitude of paternalism toward the mentally ill and
ideals of personal freedom and civil liberty. Both the state and the
profession of psychiatry have evidenced paternalism towards those with a
mental illness, which contrasts with constitutional rights that were
revisited in the civil rights movements of the 1960s. Involuntary
commitment has also been shaped by the history of psychiatry. The
perceived need for involuntary hospitalization is a result of the way that
psychiatric treatment was conceptualized and practiced in the nineteenth
century. It also arises out of a social contract, wherein the State and
the profession of psychiatry join forces to protect the public from a
group of people who are seen as both terrifying and burdensome.

The
practice of involuntary commitment also arose as a result of the creation
of the psychiatric institution as both the locus and the means for
treatment of insanity. The institution was born of several different
social forces. In early New England there had been a smattering of
psychiatric hospitals, which had mostly started as single wards within
general hospitals and had grown into separate buildings. Starting in 1810
there was a movement towards building psychiatric hospitals and
institutions that continued to gather steam throughout the first half of
the nineteenth century. This occurred in the context of overall changes in
social welfare policy; there were new ideas and practices about the State
being responsible for the indigent and the troubled, and other
institutions for special populations such as the feeble-minded or
epileptics were built at this time. The Victorian era brought a lower
tolerance for disorder and deviance, and a sense of urgency about
maintaining public safety and social order. At the same time there was a
growing sense of idealism and excitement about the possibilities of a cure
for mental illness. Whereas previous treatments for mental illness
(exorcisms, bloodletting, emetics and purges) had generally not been
successful and had contributed to a sense that insanity could only be
subdued or confined, the new moral treatment being practiced in England
promised the rehabilitation of the insane.

Maine's public psychiatric hospital was built in the
early nineteenth century to illustrate these new ideas and treatments. The
Maine Insane Hospital (often referred to at the time as the "Maine
Insane") was built in 1840 in Augusta, Maine. Governor Dunlop's speech
before the Maine Legislature in 1830, in which he advocated for the
creation of such an institution, clearly expressed the rhetoric of
collective social responsibility and hope for a cure: "Humanity loudly
calls for appropriate means of relieving and restoring to enjoyment and
usefulness"[those bereft of reason]"which means, are now not only beyond
the reach of the poor and friendless, but cannot be commanded by the
ordinary ability of our citizens or towns, on whom the duty of providing
for their support may fall." In keeping with the ideas of moral treatment,
the entire structure and experience of the hospital was designed as a kind
of treatment. The buildings and grounds represented a clean and orderly
environment which would restore the disordered mind to order. There was
proper ventilation to dissipate the bad vapors of insanity. Besides the
physical environment of the hospital, there was work, or occupational
therapy. The hospital was part of a 220 acre working farm, which
represented the key point of moral treatment. As the first report of the
hospital to the Maine legislature in 1841 stated: "Employment of some kind
is essential to the recovery of the insane. No employment is so congenial
to the human constitution as agriculture."

A hospital like this
was seen as the means of treatment for insanity, and so the means of
getting treatment was for the mentally ill to enter the hospital. The only
problem was, how was it determined who needed treatment, and thus needed
to be in the hospital? Psychiatry was a fairly young profession with few
standard ideas about mental illness. Was it a disease of the organs and
physical body like other diseases, or a disease of the humors and spirits?
This was still a matter of debate. The only available basis for diagnosis
was behavior, and for a young profession in a socially repressive age, the
behaviors that supposedly expressed mental illness were often the same as
the behaviors that expressed social aberrance, deviance, and "immorality."
Many people were hospitalized with a diagnosis of "moral insanity." This
concept may have been a precursor to the current diagnosis of antisocial
personality disorder, but it also included such Victorian no-nos as
masturbation and extramarital sex. There were also claims that husbands
brought their wives to institutions just to be rid of them.

The
commitment law was created as a move toward reform. In 1874, Mrs. E.B.W.
Packard, a one-woman whirlwind of a reform movement, successfully lobbied
in the state of Maine for passage of a law to protect against wrongful
commitment. She had been committed to an institution by her husband, a
Calvinist minister, for arguing with him about Calvinist theology and
feminism. Historians believe that Mrs. Packard probably did have a
psychotic disorder, but that she would not need to be hospitalized
according to modern standards. Before passage of the commitment law, in
some states a husband could commit a wife to a psychiatric institution
solely at the discretion of the superintendent of the institution. Mrs.
Packard felt that a law creating a more formal process of commitment would
bring order and justice to the system. In practice, though, people
continued to be committed involuntarily for reasons having more to do with
social control than psychiatric treatment.

Husbands ridding
themselves of wives via the psychiatric institution was still enough of a
problem in the 1930s that the first woman in Maine's legislature, Gail
Laughlin, authorized a bill penalizing husbands for bringing false
testimony in the involuntary commitment hearings of their wives. I worked
with a patient who in the 1960s had been brought to the hospital by her
husband. The chief complaint listed on the admitting record was: "Patient
does not do her housework." I think she did actually have a recurrent
depression, a symptom of which was her inability to care for herself and
her home, but there was obviously a large overlap conceptually between
mental illness and not functioning in a proscribed social role. There is
also a large history of the forced treatment of of homosexuality as mental
"illness." One gay man I know has a familiar story. He was brought, as a
teenager, to a psychiatric hospital in the Midwest by his parents, when
they found out he had been having gay sex. He was involuntarily committed
to the institution and treated for his homosexuality. (The treatment
didn't work).

Until the 1960s, the voice of paternalism asserted
the need for involuntary commitment. But as African-Americans and women
struggled for civil rights, there was renewed discussion and activism
about civil rights for the mentally ill. Arguments for increased freedoms
for the mentally ill took two paths, one somewhat fruitful and one less
fruitful. Against the voice of paternalism, some people posed the radical
question: Is there even such a thing as mental illness? For example, R.D.
Laing made the famous argument that mental illness is a privileged state,
an alternative viewpoint on the world. This argument at least challenged
many assumptions of the mental health profession and caused them to be
re-examined. On the other hand, the psychiatriast Dr. Thomas Szasz wrote a
history of how early psychiatrists (such as Bleuler and Krepelin) created
the diseases of mental illness by classifying certain behaviors that were
disturbing to society in general, under the heading of a diagnosis,
despite no evidence at the time of a cellular-level disease process. He
viewed this process as the manufacture of disease, a sort of large-scale
hoax which created and justified the social roles of psychiatrist and
mental patient, and justified the practice of placing these patients
against their will in a psychiatric institution. He regarded all of this
as nothing more than a sanctioned form of social control. He saw a tacit
contract existing between society as a whole and the class of
psychiatrists, in which psychiatrists arrange to confine and control
persons disturbing to society, in return for a social regard as members of
the medical profession.

Neither R.D. Laing's nor Thomas Szasz'
arguments ultimately changed the laws and practices of institutions and
involuntary commitment as much as did the arguments based on the
principles of freedom and personal liberty intrinsic to America's
self-definition. These arguments hold that despite the existence of mental
illness, and despite the fact that the mentally ill might benefit from
treatment, personal freedom is a higher order good than treatment. This
focus on ideas of civil liberty coincided with a conceptual shift in the
1970s regarding the locus and modalities of treatment of mental illness.
The institution had devolved from being a type of treatment to being a
type of warehouse, and the community was seen as the best healing
environment. Models of community-based treatment, like the community
mental health center and assertive community treatment, also known as the
ACT model, were developed. This change in thinking and practice shaped the
current commitment law, which is based on the idea that someone cannot be
detained or confined without extremely good cause. It also limits the
duration of involuntary commitment, and ensures that no one individual or
stakeholder may make commitment decisions. Currently dangerousness is the
standard for commitment, as dangerousness is a relatively simple standard
to define. But dangerousness is also a highly convenient standard, both
because the criminal justice system already confines people who have been
determined to be dangerous, and because of continuing public fears about
the alleged dangerousness of those with a mental illness.

This
spring there was news in the New York Times that political
dissidents in China were being forced into special psychiatric hospitals
run by the police and given electro-shock therapy against their will. The
mainstream organization of Chinese psychiatrist decried this practice.
However this phenomenon makes obvious that wherever the mechanism of
involuntary commitment exists, the possibility for abuse co-exists. It is
still possible to distort the language and practice of psychiatry to
overlap with social control. For instance a Chinese official discussed the
idea of a political mania, the symptoms of which would be unreasonable
suspicion, excessive and unhealthy energy directed in an obsessive manner
to political organizing, despite the obvious negative social consequences
of this activity. In any troubled relationship between the powerful and
the less powerful, like the relationship between a repressive totalitarian
government and a dissident citizen, or between parents and a gay teenager,
or between husband and wife in a patriarchal society, the language and
ideas of psychiatry and mental health practice are open to abuse as a form
of social control. In these instances, the mechanism of involuntary
commitment is also open to abuse as a way to confine those who are
threatening to the social or political order.

I therefore hope to
see the practice of involuntary commitment continue to evolve as a balance
between civil liberty and the need to care for those who cannot adequately
address their own safety. I would not wish for the end of involuntary
commitment, because I still view it as a way to provide treatment to those
who refuse out of the fear, hopelessness, and suspicion that a mental
illness can bring, and who might not otherwise survive.